Opinion
No. 475 C.D. 2014
09-23-2014
Gregory Cole, Jr., Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Montgomery County Assistant Public Defender Timothy Peter Wile, Esq. (Counsel) has filed an Application for Leave to Withdraw as Counsel from his representation of Gregory Cole, Jr. (Cole) in his petition for review of an order of the Pennsylvania Board of Probation and Parole (Board) because Cole's claim for credit against his sentence for time spent in the Montgomery County Correctional Facility (MCCF) on a board detainer is frivolous and without merit.
Cole, who is currently an inmate at MCCF, was originally convicted of two counts of possession of a controlled substance with the intent to deliver and was sentenced on January 31, 2006, to a term of two years and five months to four years and eleven months of confinement, with a maximum date of December 30, 2010. Cole was denied parole in 2007 and 2008, but was released on parole on December 20, 2009.
In October 2007, Cole was sentenced to a one- to three-year term of imprisonment for escape from detention, but he was paroled to the overlapping concurrent original sentence on June 30, 2009.
On September 11, 2010, Cole was arrested on new criminal charges and the Board issued a detainer on September 13, 2010. Cole posted bail on the new charges on December 29, 2010, but remained incarcerated on the Board's detainer until December 30, 2010.
On June 12, 2012, Cole pleaded guilty to one count each of theft by deception and possession of a controlled substance with the intent to deliver and was sentenced to serve a one- to two-year term of imprisonment with an effective date of June 29, 2012, and a maximum date of June 29, 2014. Cole waived his parole revocation hearing and stipulated to the new convictions. In November 2012, the Board recommitted Cole as a convicted parole violator to serve the remainder of his term at MCCF when available.
On August 1, 2013, Cole was paroled from the sentence on the new charges and transferred from a state correctional institution to serve the unexpired term of his original sentence at MCCF as a convicted parole violator. In September 2013, the Board recorded a decision referring to its prior recommitment decisions and setting a parole violation maximum date of August 10, 2014.
Cole then filed a pro se Administrative Remedies Form with the Board arguing that he was entitled to credit for the 111 days that he was held in jail on the new charges and the Board's detainer, from September 11, 2010, to December 30, 2010, because he did not receive credit for this time in the sentence imposed on the new charges. The Board denied credit for the period of September 11, 2010, through December 29, 2010, because Cole was not held solely on the Board detainer and credit for that time must be applied to his new sentence. However, the Board stated that Cole was given credit for the one day, from December 29, 2010, to December 30, 2010, that he was held on the Board detainer before the detainer was lifted. Cole then filed a petition for review with this Court again seeking credit for this period of time against his original sentence.
This Court's scope of review is limited to determining whether constitutional rights were violated, whether the adjudication was in accordance with law, and whether necessary findings were supported by substantial evidence. Adams v. Pennsylvania Board of Probation and Parole, 885 A.2d 1121, 1122 n.1 (Pa. Cmwlth. 2005), appeal denied, 902 A.2d 1242 (Pa. 2006).
After the record was filed, Counsel requested permission to withdraw as Cole's counsel contending that he "has made a conscientious and extensive review of the certified record" and "has diligently researched the controlling law" and believes that "[t]here [are] no non-frivolous issues to be addressed...." (Petition for Leave to Withdraw as Counsel dated July 9, 2014, at 3). Counsel's petition was accompanied by a letter in support of the petition to withdraw and Counsel sent Cole a copy of both documents to notify him of his right to retain substitute counsel or raise any issues that he might deem worthy of consideration in a pro se brief to this Court.
When court-appointed counsel seeks to withdraw because he believes in the exercise of his professional judgment that the issues raised by the parolee are frivolous, he must satisfy a number of requirements: he must notify the parolee of his request to withdraw; he must provide the parolee with an Anders brief or a no-merit letter that satisfies the requirements of Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); and he must advise the parolee of his right to retain new counsel or to raise any new points worthy of consideration by submitting a pro se brief.
See Anders v. State of California, 386 U.S. 738 (1967). The Pennsylvania Supreme Court has addressed the requirements of an Anders brief:
[An] Anders brief that accompanies [a] court-appointed counsel's petition to withdraw must: (1) provide a summary of the procedural history and facts, with citations to the record; (2) refer to anything in the record that counsel believes arguably supports the appeal; (3) set forth counsel's conclusion that the appeal is frivolous; and (4) state counsel's reasons for concluding that the appeal is frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous. We recognize that this is a significant adjustment in our decisional law concerning Anders.
In Turner, the Pennsylvania Supreme Court adopted a less stringent standard for withdrawal of appointed counsel, permitting a no-merit letter rather than an Anders brief, detailing the nature and extent of the attorney's review of the issues the petitioner wishes to raise, with an explanation of why the issues are meritless. See Hughes v. Pennsylvania Board of Probation and Parole, 977 A.2d 19, 24-25 (Pa. Cmwlth. 2009).
Counsel in this case served Cole with a copy of his application and no-merit letter on July 9, 2014. In the letter, he made his intention to withdraw as counsel clear and advised Cole that he has the option of retaining other counsel or filing a pro se brief with this Court. Other counsel has not entered an appearance in this Court and Cole has not filed a pro se brief.
Counsel seeks to withdraw because he argues that Cole's claim that he is entitled to credit for his incarceration period from September 11, 2010, through December 30, 2010, while he was on the Board's detainer as a suspected parole violator and did not post bail, is frivolous. Counsel cites Bowman v. Pennsylvania Board of Probation and Parole, 930 A.2d 599, 601 (Pa. Cmwlth. 2007), appeal denied, 945 A.2d 172 (Pa. 2008), which provides that "time spent in custody pursuant to a detainer warrant shall be credited to a convicted parole violator's original term ... only when the parolee was eligible for and had satisfied bail requirements for the new offense and thus remained incarcerated only by reason of the detainer warrant lodged against him." Id. at 601 (citation omitted). Bowman further provides that "once a parolee is sentenced on a new criminal offense, the period of time between arrest and sentencing, when bail is not posted, must be applied toward the new sentence and not to the original sentence." Id.
See also Melhorn v. Pennsylvania Board of Probation and Parole, 908 A.2d 266 (Pa. 2006); Armbruster v. Pennsylvania Board of Probation and Parole, 919 A.2d 348, 355-56 (Pa. Cmwlth. 2007).
Here, Cole was incarcerated on the new charges from September 11, 2010, through December 29, 2010, when he posted bail. He was incarcerated on the Board's detainer from September 13, 2010, through December 30, 2010, and received Board credit for the one day he was held solely on its detainer. Because he did not post bail, the time from September 11, 2010, through December 29, 2010, must be applied to the sentence on the new charges and not to the original sentence as Cole requests. As a result, Counsel properly determined that no basis exists for an appeal in this case, and the Board properly denied credit for this period of time against Cole's original sentence.
Moreover, because the parole violation maximum date on Cole's original sentence and the maximum date on Cole's new sentence have both passed, the instant appeal regarding the Board's failure to award credit on his original sentence is moot because he is no longer in custody on that sentence and this Court is no longer able to grant the requested relief. Taylor v. Pennsylvania Board of Probation and Parole, 746 A.2d 671, 674 (Pa. Cmwlth. 2000); Sands v. Pennsylvania Board of Probation and Parole, 396 A.2d 914, 915-16 (Pa. Cmwlth. 1979). --------
Accordingly, Counsel's Application to Withdraw as Counsel is granted and the Board's order is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 23rd day of September, 2014, the Petition for Leave of Court to Withdraw as Appellate Counsel filed by Montgomery County Assistant Public Defender Timothy Peter Wile, Esq., appointed counsel for Gregory Cole, Jr., is granted and the order of the Pennsylvania Board of Probation and Parole is affirmed.
/s/_________
DAN PELLEGRINI, President Judge
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).